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In part 1, we learned not to commingle. That is, the first principal of trust accounting is that lawyers must keep client funds held in connection with a representation separate from their own. So, then, where to hold them?

Rule 1.15(a)(1) requires such funds to be kept as required by Rule 1.15A and Rule 1.15B. Let’s look at the requirements in each, at times hopping back & forth between the two.

First, funds that belong to clients or third persons and that are in lawyer’s possession as a result of a lawyer-client representation must be held in an account that is clearly labeled as a “trust” account and that is at a financial institution. Rule 1.15A(a).

Second, not just any old financial institution. Rule 1.15B(a)(1) requires lawyers to “create and maintain a pooled interest-bearing trust account” at a financial institution that has been approved by the Professional Responsibility Board. The list of approved financial institutions is on this page under the heading “Attorney Trust Accounts.”

Third, lawyers must set up an accounting system that, at a bare minimum, includes the features listed in Rule 1.15A(a)(1)-(4).

The accounting system is important. As this decision shows, the failure to have an accounting system will earn you a public reprimand. Also, per Rule 1.15A(b), lawyers must submit to trust account compliance reviews. Disciplinary Counsel regularly conducts such reviews, sometimes at random. I’ve seen the reports. The CPAs look for compliance with the “bare minimum” requirements. Several compliance reviews have resulted in the imposition of discipline for failure to maintain an accounting system that includes the required minimum features.

Without getting too lost in the weeds, the bare minimum features are:

a system that shows all receipts, disbursements from the trust account, including the source of receipts and nature of disbursements;

records that identify each client or third person for whom funds are held, the amount held, all receipts & disbursements for that client, and a running balance;

records documenting timely notice to each client or third person of receipts and disbursements; and,

records documenting “timely reconciliation” of the account or accounts, and a “single source” that identifies all accounts maintained.

“Timely reconciliation” is “no less than monthly.”

Fourth, interest on these pooled interest-bearing trust accounts must not be made available to the lawyer or the client. The lawyer must inform the financial institution that the interest is to be paid to the Vermont Bar Foundation. Rule 1.15B(a)(1).

The interest will go to the client or third person ONLY if the funds are reasonably expected to earn net interest or dividends that will exceed the transaction costs and administrative costs. This is exceedingly RARE. As made clear by Rule 1.15B(a)(1), the default position is that funds go into a pooled interest-bearing trust account from which the interest is paid to the VBF. By rule, “no lawyer may be disciplined for placing client funds in the pooled interest-bearing account if the lawyer made a good faith determination that the funds” were not reasonably expected to earn net interest or dividends for the client or third person.

Finally, by rule, the financial institution MUST notify disciplinary counsel whenever an instrument drawn on an attorney trust account is presented against insufficient funds, regardless of whether the instrument is honored. In other words, it’s not just overdrafts that will be reported.

So, that concludes lesson 2. To recap:

If you’re holding funds of a client or third person in connection with a representation, keep them separate from your own.

Deposit the funds in a trust account at an approved institution.

Implement an accounting system that, basically, tracks how much you have in total, how much you have for each individual client, where money came from, where money went.

(Try saying that 3 times fast and learn why today might also be national tongue twister day.)

What’s this got to do with wellness? Let me try to convince you that it does.

Per today’s ABA Journal, there are “gaps in Americans’ civic knowledge.” The gaps were revealed by the 2019 ABA Survey of Civic Literacy. Honestly, the numbers don’t look terrible to me. Especially compared to numbers I reported in this space a few years.

In this post, I referenced this poll. 37% of those surveyed couldn’t name EVEN ONE of the protections in the 1st Amendment to the United States Constitution.

Free speech, free press, and free society indeed.

As I blogged back then,

Worse, per the same poll, only 1 in 4 Americans can name all 3 branches of government!

If 3 out of 4 don’t know the branches, how are we to impress upon the executive & legislative branches the importance of an independent & fully funded judicial branch?

Here’s a simple way to help: contact the Vermont Bar Association at info@vtbar.org Ask for a pocket constitution. Give the pocket constitution to a kid, or to a teacher, or to a client who is a school board member.

Or, do what a number of Vermont lawyers have been doing around the state: volunteering their time to visit schools and civic organizations to talk about the Constitution and civics. It might sound like a small step. It is. But small steps often lead in the right direction.

Within days, the challenged was accepted and my singing debut finalized. At the October 2017 Annual Meeting of the Vermont Bar Association I subjected those in attendance to my rendition of the Schoolhouse Rock! song. How it has not gone viral is truly the 9th wonder of the modern world.

If picturing me singing The Preamble to a ballroom full of 300 as my parents looked on in abject horror doesn’t improve your mood, then I don’t know what wellness is.

Furthermore, last week, Eileen Blackwood and I presented on professionalism at the VBA’s Basic Skills conference. Eileen urged the new lawyers to consider pro bono work. Among its other benefits, Eileen shared a poignant story of how a case that she handled pro bono brought her a measure of personal satisfaction that she didn’t always find in her work for “paying” clients.

Her story is relevant today.

Pro bono is a professional responibility. The rule here. It states that a substantial majority of a lawyer’s pro bono hours should be provided to persons of limited means or to organizations whose primary purpose is to support persons of limited means.

After that, however, Rule 6.1(b)(3) indicates that additional hours may include “participation in activities for improving the law, the legal system or the legal profession.” Per Comment [8], this includes “taking part in Law Day activities.”

So,

it’s clear that we need to do more to increase civic knowledge;

Rule 6.1(b)(3) and Comment [8] indicate that Law Day activities count as pro bono;

This year, the Vermont Judiciary will start the rollout of its Odyssey Case Management System (“CMS”).

In January, Judge Kate Hayes, Andy Stone (the Judiciary’s CMS Project Director) and me presented a CLE on the new system. Our CLE opened the Vermont Bar Association’s YLD Thaw. The VBA has graciously made the material available here. Judge Hayes & Andy addressed practical issues, while I touched on ethics issues associated with e-filing.

This will sound odd coming from a blogger who built this blog on the mantra “competence includes tech competence.” But, with respect to the ethics issues associated with the new CMS, my message is this:

Don’t get too caught up in the tech aspect of it. The fact is, your duties will be no different than in a paper-based system. That is, the duty to provide clients with competent representation will include understanding what the rules of electronic filing require.

On that note, I have good news.

E-filing isn’t new. It was introduced in the state courts in 2010. In addition, many of you practice in the federal District Court and Bankruptcy Court. E-filing is a thing in each. In all my time here, I’ve received fewer than 3 complaints alleging that a lawyer’s lack of tech proficiency negatively impacted a client’s matter.

The Vermont Judiciary has adopted rules for electronic filing. As I understand it, a committee is looking at prposed changes to the rules. If and when those changes are made, they will be available on the Judiciary’s website.

The CMS rollout will progress in stages. That is, the Judicial Bureau, the Environmental Unit, the Supreme Court, and the various units (counties) will come online over time. As courts in which you appear transitionto CMS, you should familiarize yourself with the rules for electronic filing.

Fear not. Remember: fewer than 3 complaints.

Also, when it comes to technology, it’s usually not “tech” that gets a lawyer in trouble. It’s using tech to do something that would’ve been unethical if done without tech.

(The same post includes a digest of cases & opinions in which lawyers were sanctioned for disclosing client confidences in response to negative online reviews. Remember, it’s not the fact that the confidences were disclosed online that’s the problem: it’s that they were disclosed!)

Similarly, as I blogged here, comments that would’ve been inappropriate in a telegram to a client are no less inappropriate because they were made via Messenger.

Which gets me to final point: whether by smoke signal, spoken word, typed document, or electronic submission, dishonesty is unethical.

Preparing for the Montreal seminar, I asked attorney regulators in states that have moved exclusively to e-filing to share with me any cases in which lawyers were disciplined for conduct involving “e-filing.” Here are some of the responses:

“The worst ethical dilemma/violation I have experienced with e-filing involved a recently terminated associate from a Regional Workers Comp Firm. He called me to tell me that once his firm terminated him a managing partner ordered a surviving associate to ‘pull all his files and draft and e-file Motions to Withdraw stating [the terminated lawyer] is no longer with the Firm…’ The Partner then directed the associate/assistant to e-file the Motions under terminated attorney’s name and file with [the terminated lawyer’s] e-file credentials!!!! Terminated attorney received email notifications on several Motions and Orders granting the Motions before he was able to call the Clerk’s office and state that someone was filing under his name without his permission.”

Yes, believe it or not, impermissibly using another lawyer’s e-filing credentials, and forging that lawyer’s e-signature, is a problem. And it’s a problem that has little to do with “tech.”

2. “We have had a couple of instances of one lawyer allegedly e-signing opponents counsel to an unagreed to stipulation.”

Yes, believe it or not, fraudulently “signing” opposing counsel’s name is a problem. And it’s a problem that has nothing to do with “tech.”

3. “Mike, here’s one for you … a lawyer ‘e-filed’ a declaration with the expert signing electronically (“/s/”) … but the lawyer knew the expert refused to sign … our court suspended the lawyer for 90 days.”

Yes, believe it or not, fraudulently “signing” an expert’s name to a declaration that you know the expert had refused to sign herself is a problem. And it’s a problem that has nothing to do with “tech.”

Finally, I became aware of a case in which a United States Bankruptcy Court (not Vermont’s) raised concerns over a lawyer’s lack of proficiency at filing electronically. So, the court assigned the lawyer “homework.” The “homework” was to re-file 9 documents, without any mistakes, and without assistance from another lawyer.

The lawyer paid another attorney to file the documents.

As a result, the bankruptcy court suspended the lawyer from practicing before it. Again, intentionally disobeying a court order has little to do with “tech” or “e-filing.”

Will e-filing be new to some of you? Yes.

Will you have to learn things along the way? Yes.

Will some of you need help figuring out how to e-file? Yes.

Is mandatory e-filing likely to put your license at risk? No.

As I’ve indicated, it’s not e-filing itself that trips up attorneys. Rather, it’s engaging in conduct that would’ve been unethical at every moment in the entire history of a regulated practice of law.

I didn’t blog much this week. So, I thought I’d take a few minutes to pass on some tidbits from the world of professional responsibility.

If you inform a court that you missed a hearing because your car was in the shop, don’t forget this: the court might follow-up by asking for your mechanic’s name and a receipt for the work done. An inability to provide either might lead to your (law) license being suspended. The ABA Journal has the story here.

Also from the ABA Journal, JurisBytes was one of the winners at the ABA Tech show. The startup designed an app that assists lawyers to track the time spent texting clients.

In this blog post, Jonathan Turley welcomes the news that New York disbarred Michael Cohen. I took Professor Turley’s property law class at GW.

Professor Alberto Bernabe, a frequent member of this blog’s #fiveforfriday Honor Roll in legal ethics, breaks down the Ohio Bar’s recent advisory ethics opinion on conflicts of interest.

My job often includes guiding lawyers through the ethics issues that arise when they leave a firm. Until today, I’d never run across this one. As reported by Above The Law, a law firm sued an associate who quit 1 year into a 3-year “employment commitment.” Per the report, the firm alleges breach of contract and is seeking damages for the time spent training & mentoring the departed associate, time that more seniors lawyers will now have to spend working with someone new instead of billing clients.

Finally, and a tip of the electronic hat to Professor Bernabe for calling this to my attention, the Legal Profession Blog posted Sunlight in Vermont, noting that Vermont’s Professional Responsibility Board has a “first-rate transparent web page.”

Forty-one aspiring members of the Vermont bar will be there. I’ll be there too, as a proctor. That’s a good thing. I have a better chance of skiing Paradise from top to bottom without falling than I do of passing the bar exam. And I say that knowing full well that I don’t know how to ski.

These days, Vermont’s bar exam is much different than many of you remember. In 2016, Vermont switched to the Uniform Bar Exam (“UBE”). For an overview of the UBE, check out this post from last summer.

Today, I’m happy to be able to share additional information about the exam, courtesy of Keith Kasper and Andy Strauss. Keith chairs the Board of Bar Examiners (“BBE”) and is a regular member of the #fiveforfriday Honor Roll in Legal Ethics. Andy is Vermont’s Licensing Counsel and is responsible for the administration of the bar exam. They were kind enough to take time out from exam prep to answer questions.

All mistakes are mine.

MK: In legal ethics, the very first rule requires lawyers to provide clients with competent representation. To some degree, is that what the UBE is intended to do? Help us to identify lawyers who meet (or exceed) a minimal level of competence? That is, the UBE is more than testing who can remember the most from law school, right?

Keith: The UBE is a measure to assure that those applicants we certify for licensure are qualified to practice law. Unfortunately, a law school degree is not sufficient. While not part of the UBE, the MPRE (Multistate Professional Responsibility Exam) is utilized by most states to assure that bar applicants have studied not only the substantive aspects of the law but the ethical requirements of being a lawyer. On the other hand, the UBE evaluates the core legal knowledge of the applicants as to the most important aspects of a modern law practice. It undergoes periodic review and updating to reflect the modern practice of law in this country. One of the most recent changes since you and I took the bar exam is to add federal civil procedure to the Multistate Bar Exam (“MBE”) portion of the UBE, as procedural aspects of the practice of law are also of great importance to the competent practice of law.

MK: Competence is key! So, conflicts of interest are a big thing in my world. I know that some in the state were “conflicted” about the change from the so-called “Vermont-specific essays” to the written portions of the UBE. Can you share the BBE’s thinking on the change? Was it a tough decision? And, any thoughts on how it has worked out?

Keith: It was a tough decision, one that took years to ultimately make. However, I would phrase the decision in terms of competence. The Board ultimately decided that professional test developers would do a better job drafting bar exam questions more consistently year over year than us part-time amateurs were able to do. We did lose the ability to test on Vermont specific items, but we addressed this issue by requiring new lawyers to take 15 hours of CLE in the basics of Vermont practice and procedure. In addition, we replaced the old pre-admission clerkship requirement with a new one year post admission mentorship program to try to push new lawyers out into the legal community to experience as wide an array of Vermont law and practice as pragmatically possible, and to give new lawyers a mentor they can go to at almost any point in their career with questions as to Vermont law and practice. So, while I do miss drafting bar exam questions, (Anybody out there remember a Workers’ Compensation/Tort bar exam question?) I think the bar, bar applicants and the public are better served with these new admission requirements.

MK: I speak and blog often on attorney wellness. Wellness includes stress management. When I took the bar exam, there was a thunderstorm that knocked out the power. Talk about stressful! I know that the Board and Andy work hard to ensure that the testing environment is as conducive to success as possible. Are there any challenges with making an otherwise stressful event as stress-free as possible?

Andy: One challenge is that we rely on an outside vendor to provide the software for those examinees who want to take the exam by laptop. It can be stressful when one or two (or more) people are having difficulty getting set up with the software right before the exam. But the software package is good, and the vendor is responsive on exam day and provides us with an on-site technology person.

MK: I remember “Barmageddon” in the summer of 2015. Fortunately, we didn’t run into any serious problems here. But I worried for some of the examinees as the uploads stalled.

Andy: One thing I’ve noticed is that, although the examinees are involved in a stressful exam situation, they are for the most part polite and friendly on exam day. Not having people get upset or angry or impatient goes a long way towards a smooth exam administration.

The other thing that is important is for myself and the other staff helping to put on the exam to recognize that the examinees are full of stress and to be as friendly, helpful, patient, and understanding as possible. I think we do a great job at that. I also take that approach in all of my interactions with examinees during the application process.

MK: Very interesting point Andy. I love that, at the bar exam, you W.I.N your 3-feet of influence. I covered 4 or 5 exams and proctored many others. I too was often struck by how nice our examinees are. Practicing lawyers should take note! Rule 3.5(d)! Anyhow, as fortunate as we’ve been to enjoy such high-quality examinees, not all states are the same. I know that folks in your job spend significant time & resources ferreting out cheaters. What are a few of the craziest cheating stories you’ve heard?

Andy: To be honest, I haven’t really heard any crazy stories! Sometimes I read about spy-like technology, like camera glasses and speaker earrings, but that’s really about it.

MK: Dang. I was hoping you’d busted a twin taking it for her sister. But I suppose it’s good that you’ve not had to deal with anyone as audacious as my favorite bar exam fraudster: Mike Ross

So, speaking of technology. A lot of lawyers might not know that examinees can now use their laptops for the essays. About how many take advantage of that option? Can I assume the graders love it? Also, do you think we’ll see a day where the multiple-choice segment of the exam is digital or electronic

Andy: Almost all examinees take it on a laptop nowadays. And I don’t think we’re that far from seeing the MBE (multiple choice) being taken electronically. The ethics exam that the National Conference of Bar Examiners administers is about to be given electronically, so the MBE will probably follow not long after.

Here, unlike the cheating tools I mentioned, technology is definitely good. I’m sure the graders are happy not to be trying to decipher handwriting as often as they used to, and I wouldn’t mind not having to sharpen 200 pencils before every exam.

MK: The bar exam: the last bastion of the #2 pencil!

Next, I asked the same question of both Andy & Keith but had them answer separately and only to me.

For Keith: You are an experienced practitioner. You’ve served on many VBA and Court projects and committees designed to improve the profession. What’s something that the exam doesn’t test – in fact that may be impossible to test – that’s critical to a successful career as a lawyer?

Keith: On the national level one area that has been discussed would be client interview skills. My understanding is that they test patient evaluation skills for new doctors for the Doctor licensing exams. I think the issue is that we have so many more lawyers taking the bar exam then doctor’s taking their licensing exam that a nationwide evaluation of one on one people skills is just not practical to add to the bar exam. However, people skills and listening to your client are vital to many areas of legal practice. (When one of my firm founding partners, John Fitzpatrick, took the bar exam back in 1958, there was an oral component to the bar exam in VT.) I personally have suggested to the National Conference of Bar Examiners adding administrative law to the mix of areas to be tested given how many lawyers deal with administrative law issues. One thing that has changed on the bar exam since you and I took it is adding a performance exam portion to the testing protocol. Essentially the applicant is given a file folder of factual materials and copies of all the law they need to know to complete the project (from the fictional state of Franklin). The applicant needs to complete the project (drafting a memo, for example) and determine what information is relevant and what is not to address the issue and apply the relevant law correctly to the project and understand what law is relevant to the issue. This test a different skill set from taking a multiple-choice test and writing a law school type essay answer which had previously been the focus of the bar exam. Again, the bar exam continues to evolve over time. The MPRE is being given on tablets this year with the thought that ultimately the National Conference would move to providing specially dedicated computers for applicants to take the bar exam. A long way from the old days of handwritten essay exams in blue books. Given my horrendous handwriting it is a miracle I passed!

For Andy: You have a varied background: private practice, criminal prosecutor, in-house counsel to a government agency. In your experience, what’s something that the bar exam doesn’t test – indeed, might be impossible to test – that is critical to success as a lawyer?

Andy: I think the bar exam is good at testing legal analysis skills: discerning key facts, applying the law to those facts. These skills are essential to success as a lawyer. But unless you are an appellate lawyer, much if not most of your time will be spent doing other things. As a prior litigator, I see the two most important “other things” as (1) communicating with clients, attorneys, and judges, and (2) gathering facts (i.e. depositions, client interviews, document review, etc.). The MPT (the performance section of the exam) only grazes the surface of these. So, if we are using the bar exam to ensure minimal professional competence, we need to figure out a way to test these areas.

That said, my personal experience from law school leads me to think that people are not getting much training in these areas during their legal education. So, ensuring that new attorneys can communicate effectively and successfully gather facts likely requires a much larger change in how we train and evaluate new lawyers.

MK: Each of you has mentioned technology. Has anyone ever suggested the bar exam should be open book? I mean, really, these days, our mobile devices allow us to look up answers on demand. So, it’s not like a lawyer will ever have to do something by memory.

Keith: The open book issue has been raised in the past, but not recently. Not sure what the answer to that question is from a testing metrics perspective. I think the bigger problem with mobile devices is cheating: Is this your work or not? The National Conference usually has an eye-opening seminar every year on the new devices and methods of cheating. These days, we do not allow you to even bring your own watch or pencils into the testing room. A few years ago, someone’s wife took the bar exam for him in California after he had had multiple failures. I think they both got disbarred.

MK: You are right! The Los Angeles Times has the story here. I admit, I had to look it up. I didn’t know it by memory. Maybe she’s the one who inspired the creators of Mike Ross!

Several years ago, I was an associate examiner. One of the essay questions was on professional responsibility. Believe it or not, I was assigned to grade answers to that question. True story: one person wrote something like: “I don’t know. I’d call Mike Kennedy.” That must be worth something, right??

Keith: That is definitely worth at least one point! It is impossible to know all the law. Knowing who to ask if you don’t know the answer is almost as good as knowing the answer itself.

MK: Great point, Keith. And one that goes to the value of the new mentorship program. Okay, final question for each of you, a question related to attorney wellness.

Andy – you race Dragon Boats. Not only “race,” you were in the world championships! I assume there won’t be drummers in the exam tomorrow. Are there similarities in preparing for a dragon boat race and, say, the bar exam or an important hearing?

Andy: Now that’s an interesting question! Here’s one thought: Going into big performance challenges, such as a competition or a bar exam or a trial, there can be a rush of nervousness and even fear of failure. I think that at those points, it is extremely important to consciously recognize how hard you have worked to prepare for the event and consciously put your trust in that training. The nervousness may still be there, but your focus will be elsewhere.

And no, no drummers at the exam. Just the silent ticking of the countdown clock!

MK: Ha! If only Poe had written about the bar exam. Keith – you’re a huge fan of The Grateful Dead. A few weeks from now, you’ll be grading bar exams. Which Dead show will be playing on your sound system?

Keith: Philadelphia 1987 (Place and year I graduated from law school.) Favorite song from that 3-night stand of concerts, and my theme song for when I was studying for the VT bar exam later that year: “I Need a Miracle Every Day!”

MK: Don’t we all! Here’s the video. Great stuff guys! Thank you for taking the time, and thanks for all you do for Vermont’s legal profession!

Yes, a West Virginia lawyer’s license was suspended for 42 months. Yes, the misconduct included a misleading GoFundMe page.

How much money do you think the lawyer raised via the GoFundMe campaign?

If you guessed anything more than $0.00, you guessed wrong.

The lawyer created the page in September 2017. He took it down immediately after disciplinary authorities alerted him to their investigation of the page. It had been active for 3 or 4 days and generated exactly zero donations. The lawyer testified that he’d meant it only for family members and did not realize that it was publicly available.

Then why the 3.5 year suspension?

Alas, for approximately nine months that spanned 2016 and 2017, the lawyer misappropriated more than $12,000 from the Kanawha Valley Soccer League while serving as its treasurer.

There’s no need to fear tech or to think that tech developments have foisted a whole new type of unethical lawyer on the masses. Since the dawn of time, people (including lawyers) with access to other people’s money have stolen it.

Further, don’t let the headlines detract from something more important: crowdfunding platforms can help to provide access to legal services.

Are there ethics issues associated with crowdfunding platforms? Yes. I’ve written about them here and here. Regular #fiveforfriday contributor Professor Alberto Bernabe has discussed them here.

But, to think that a crowdfunding platform caused a lawyer to lose his license for 3.5 years would be, quite simply, wrong.

In November 2017, I posted The 50 Original Rules. It’s a recap of the history of the conduct rules that apply to lawyers.

As best as I can tell, the earliest record of guidelines for attorney conduct in the United States is David Hoffman’s 1836 publication of his Fifty Resolutions in Regard to Professional Deportment. My post includes each of Hoffman’s 50 resolutions.

182 years later, it’s somewhat fascinating to me how many of Hoffman’s resolutions continue to resonate. Many are embedded in the rules and our collective professional conscience. Given my fascination, I’ve resolved to blog about the continued relevance of Hoffman’s resolutions, taking them one at a time. So far:

“All opinions for clients, verbal or written, shall be my opinions, deliberately and sincerely given, and never venal and flattering offerings to their wishes or their vanity. And though clients sometimes have the folly to be better pleased with having their views confirmed by an erroneous opinion than their wishes or hopes thwarted by a sound one, yet such assentation is dishonest and unprofessional. Counsel, in giving opinions, whether they perceive this weakness in their clients or not, should act as judges, responsible to God and man, as also especially to their employers, to advise them soberly, discreetly, and honestly, to the best of their ability, though the certain consequence be the loss of large prospective gains.”

I’m using the exact quote. To be clear, I’m not suggesting that competent representation includes being responsible to God or any other deity. Again, I was simply quoting Hoffman.

The rest of Resoluton 31 is as relevant today as it was in 1836. Candid legal advice is always a better option than telling the client what the client wants to hear.

In my experience, the lawyer who fails to set reasonable expectations at the outset of the representation should expect to have the client file a disciplinary complaint.

False hope leads to disappointment. Even if the result is as good as the client should have expected from the outset, the client likely will be disappointed if the result pales in comparison to what the lawyer suggested the outcome would be. Don’t fall into that trap. As Hoffman said, “[a]nd though clients sometimes have the folly to be better pleased with having their views confirmed by an erroneous opinion than their wishes or hopes thwarted by a sound one, yet such assentation is dishonest and unprofessional.”

Better to thwart unreasonable hopes with sound advice than to nurture their growth.

Manage expectations by providing candid legal advice. If you don’t, the client will insert your name into the Blank Space on a disciplinary complaint.

Lawyer and Client agree to form a lawyer-client relationship. Lawyer and Client have never before entered into a lawyer-client relationship. The agreement is for an hourly fee. Which is most accurate?

A. the agreement must be in writing

B. the agreement must be in a writing that is signed by the client

C. the scope of the representation & basis of the fee shall be communicated to the client, preferably in writing, before the Lawyer commences the representation

D. the scope of the representation & basis of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after Lawyer commences the representation. Rule 1.5(b).

Question 3

Which does not belong with the others?

A. each affected client gives informed consent, confirmed in writing

B. the lawyer reasonably believes the lawyer will be able to provide competent & diligent representation to each client

C. the representation does not involve the assertion of a claim by one client against another in the same litigation

D. the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation.

A, B , C appear in Rule 1.7(b)’s standard on when a conflict can be waived. D is in Rule 1.5(e), the rule that applies when a lawyer shares a fee with a lawyer who works in a different firm.

Question 4

There’s only one rule that requires a lawyer to include a specific phrase on certain types of communications. What’s the phrase?

As I mentioned, I often refer to the duty of competence. For some, the ultimate in competence is the utter evisceration of a witness on cross-examination.

The O.J. Simpson criminal trial started 24 years ago today. F. Lee Bailey, who has since been disbarred for reasons unrelated to OJ, was on Simpson’s so-called “Dream Team.” Bailey’s cross-examination of one of the investigating officers is legendary.

Among other things, during the cross-examination, Bailey got the investigating officer to invoke the privilege against self-incrimination when asked if he had planted or manufactured evidence in the case.

Who was the investigating officer?

Mark Fuhrman

Not all agree that the cross-examination was effective. For instance, see this article in the New York Times.

In November 2017, I posted The 50 Original Rules. It’s a recap of the history of the conduct rules that apply to lawyers.

As best as I can tell, the earliest record of guidelines for attorney conduct in the United States is David Hoffman’s 1836 publication of his Fifty Resolutions in Regard to Professional Deportment. My post includes each of Hoffman’s 50 resolutions.

182 years later, it’s somewhat fascinating to me how many of Hoffman’s resolutions continue to resonate. Many are embedded in the rules and our collective professional conscience. Given my fascination, I’ve resolved to blog about the continued relevance of Hoffman’s resolutions, taking them one at a time. So far:

“23. In all small cases in which I may be engaged I will as conscientiously discharge my duty as in those of magnitude; always recollecting that ‘small’ and ‘large’ are to clients relative terms, the former being to a poor man what the latter is to a rich one; and, as a young practitioner, not forgetting that large ones, which we have not, will never come, if the small ones, which we have, are neglected.”

To me, #23 is a resolution to comply with the duty of diligence . . . in every single matter.

This should go without saying, but in 20 years of screening & investigating disciplinary complaints, I’ve heard it all. Believe it or not, I’ve had lawyers respond to complaints or inquiries by saying “THAT case?? It’s a nothing case. What’d they expect me to do?”

Ummm, I don’t know, your job?

There are no “small” cases. Some are worth more than others, some are more complicated than others. But to the people involved, the matter you’re handling might very well be the most important thing in their lives. To a degree, all they have is your diligence.

By analogy, how many of you have gone to the doctor to have your cough & runny nose checked out this winter? The health care professional who treated you probably saw someone with a lot worse than a cold that day. Yet, the health care professional didn’t say “what, just a cold?” and leave you waiting while he or she went off to work on someone “sicker.”

Do the same with your clients. When it’s time to work on a matter, work on the matter. Diligence for all.

Further, remember that even in the so-called small cases, someone is always watching. I think that’s what Hoffman means by “as a young practitioner, not forgetting that large ones, which we have not, will never come, if the small ones, which we have, are neglected.”

The client whose “small” matter you have today might have a “large” matter in the future. The decision whether to retain you then might well turn on the attention you give to the “small” matter today. Similarly, opposing counsel and judges notice how you handle yourself. Word gets around, and words make reputations.

Finally, let me ask a question: what does it mean to learn that I’ve had lawyers say to me “THAT case?? It’s a nothing case. What’d they expect me to do?”

It means that the client in THAT case contacted the Professional Responsibility Program to complain. The rules do not contain exceptions for “small cases.” Regardless of a matter’s worth or complexity, a lack of diligence is a lack of diligence. In other words, the client whose matter is too small to attend to is likely the exact client who will contact me.

I love movies. I’ve certainly referred to them time & time again in this blog. Yet, despite my love of movies, and equal interest in spicing up an otherwise dreary profession, I’d never dare to submit a pleading in the form of a screenplay.

But to each their own!

In October, Attorney Ilya Liviz filed a federal civil action against the Massachusetts Supreme Court. He filed the complaint in the form of a screenplay.

I don’t think I can do the story justice. There’s an excellent write-up at LegalNews.com. The ABA Journal also covered the filing.

Per the LegalNews.com story, Liviz followed the complaint with a letter asking the court to indulge the format. Perhaps anticipating a referral to disciplinary authorities, Liviz’s letter to the court noted that “loss of ability to practice law is not the risk I am concerned with, but living with regret for failing to act is.”

Noble. But an agrument I never heard in 14 years as a disciplinary prosecutor.

Not surprisingly, the federal court concluded that a “complaint in the form of a movie script” does not comply with the rules of procedure and ordered Liviz to show cause as to why the complaint should not be dismissed.

Liviz didn’t back down. He responded to the show cause order by moving for sanctions against the judge. He also moved to recuse the judge, citing the “Liviz recusal doctrine.”